AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT dated as of May 18, 2004 (this
"Amendment") between Dune Energy, Inc., a Delaware corporation having its
principal place of business at 0000 Xxxx Xxx Xxxx., Xxxxx 0000, Xxxxxxx, Xxxxx
00000 (the "Employer" or the "Company"), and Xxxx Xxxxxx, an individual residing
in the State of Connecticut (the "Executive").
WHEREAS, the Company and Executive have entered into that certain
Employment Agreement effective as of May 18, 2004 (the "Employment Agreement");
and
WHEREAS, the Company and Executive now hereby wish to amend the
Employment Agreement to provide for an exception to the Executive's
anti-dilution rights with respect to shares of the Company's Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
parties agree as follows:
1. Amendment: Section 7 shall be amended and restated in its entirety to
read as follows:
7. Issuance of Additional Shares of Common Stock: Except as otherwise set
forth in this Section 7, at no time shall the number of shares of Common Stock
currently held by the Executive or acquired pursuant to this Agreement,
constitute less than five percent (5%) of the Company's issued and outstanding
shares of Common Stock on a fully-diluted, as converted basis. If the Company
issues additional shares of Common Stock, or securities convertible into shares
of Common Stock to any third party after the date hereof, then the Company shall
likewise cause to be issued to the Executive, such additional number of shares
of Common Stock as are necessary to maintain Executive's five percent (5%)
equity ownership in the Company. Notwithstanding the above, the Company shall
not have any obligation to cause to be issued to Executive additional number of
shares of Common Stock, and the number of shares of Common Stock held by
Executive shall be permitted to fall below five percent (5%) of the Company's
issued and outstanding shares of Common Stock on a fully-diluted, as converted
basis, if Company is required to issue additional shares of Common Stock to
Itera Holdings BV pursuant to that certain Agreement for Issuance of Additional
Shares of Common Stock entered into by and between Itera Holdings BV and Company
effective as of May 18, 2004.
2. Controlling Agreement. To the extent any provisions contained herein
conflict with the Employment Agreement or any other agreements between Executive
and Company, oral or otherwise, the provisions contained herein shall supersede
such conflicting provisions contained in the Employment Agreement or other
agreements. Except as modified herein, Executive and Company hereby represent
and warrant that the Employment Agreement remains in full force and effect and
is hereby reaffirmed and ratified by Executive and Company.
3. Counterparts, Facsimiles. This Amendment may be executed in
counterparts. Each executed counterpart of this Amendment will constitute an
original document, and all executed counterparts, together, will constitute the
same agreement. Any counterpart evidencing signature by one party that is
delivered by telecopy by such party to the other party hereto shall be binding
on the sending party when such telecopy is sent, and such sending party shall
within the days thereafter deliver to the other parties a hard copy of such
executed counterpart containing the original signature of such party or its
authorized representative.
[Signatures on following page]
IN WITNESS WHEREOF, the parties have signed this Amendment No. 1 to
Employment Agreement as of the date above written.
Employer: Executive:
Dune Energy, Inc.
By: /s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxx
Xxxxx Xxxxx Xxxx Xxxxxx
President, Chief Operating
Officer
